The opinion of the court was delivered by: Whitman Knapp, Senior United States District Judge
Plaintiff George Rodney ("Plaintiff" or "Rodney"), pro se and incarcerated, filed this action pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated by Defendants' alleged harassment, retaliation, wrongful disciplinary charges and excessive use of force. Defendants are employees of the New York State Department of Correctional Services ("DOCS"). Rodney seeks both monetary and injunctive relief, including the rem oval of the disciplinary conviction from his inmate record.
In August 2001, Defendants moved to dismiss Plaintiff's complaint under Fed.R.Civ.P. 12(b)(1) and (6) for his failure to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995 ("PLRA ") as amended, 42 U.S.C. § 1997e(a). On February 27, 2001, I denied Defendants' motion in accordance with the controlling law at that time, Lawrence v. Goord (2d Cir. 2001) 238 F.3d 182 and Nussle v. Willette (2d Cir. 2000) 224 F.3d 95. On February 26, 2002, the United States Supreme Court reversed Willette, working a significant change on the law of this circuit. Porter v. Nussle (2002) 534 U.S. 516 (unanimously reversing and remanding the Second Circuit's judgment and holding that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."). In March 2002, Defendants requested permission to renew that motion to dismiss; I granted that request. Before the Court now is Defendants' Renewed Motion to Dismiss for failure to exhaust administrative remedies prior to commencing this action.
While the merits of Plaintiff's case are not at issue here, it is nonetheless useful to review the factual allegations. This action arises from incidents which allegedly occurred in January and February 2000. While Plaintiff is currently incarcerated at the Mid-Orange Correctional Facility ("Mid-Orange), the incidents at issue in this action occurred at the Fishkill Correctional Facility ("Fishkill"). Plaintiff alleges that Defendant O'Brien ("O'Brien"), a correctional officer at Mid-Orange, had been verbally harassing him. In response, on approximately January 23, 2000, Plaintiff wrote several letters of complaint to the Vice Consul of the Consul-General of Jamaica, to Defendant Goord, ("Goord"), Commissioner of DOCS, and to Defendant Mazzuca, ("Mazzuca"), Superintendent of Mid-Orange. (Compl. ¶ 14.) Plaintiff alleges that, on the day after he sent these letters, while on his way to the visiting area, O'Brien threatened him. (Id. ¶ 15.) Plaintiff informed his wife, Althea ("Althea"), and Defendant Ray, ("Ray"), a DOCS Sargeant, of O'Brien's actions. Ray allegedly told Plaintiff to file a complaint, but that he "could expect O`Brien to come after" him. (Id. ¶ 18.) In response to Plaintiff's allegations, Aletha sent a complaint to Defendant Perez ("Perez"). (Plaintiff's Supporting Affirmation (hereinafter "PSA"), Ex. 2.)
On January 30, 2000, Defendants Conklin ("Conklin"), Garnett ("Garnett") and Non ("Non") (collectively "Visiting Room Defendants") ordered Plaintiff to submit to a strip search prior to entering the visiting area to see Aletha. (Compl. ¶ 19.) Plaintiff alleges that during this strip search, the Visiting Room Defendants threatened him because of his complaints about O'Brien. (Id.) Once in the visiting area, Plaintiff complained to Ray and requested that he be placed in protective custody. (Id.) Ray took Plaintiff to the back area and spoke with him, informed him that he would speak with the Lieutenant, and returned Plaintiff to the visiting area. (Id.) At that point, Aletha asked Ray to call a Lieutenant. (Id.) At the conclusion of the visit, as Plaintiff was exiting the visiting room, he noticed Defendants Conklin, Garnett, Non and Correction Officer Murray ("Murray") near the visiting room exit. (Id. ¶ 20.) Plaintiff then returned to the visiting room and told Aletha that the aforementioned Defendants were "going to set him up." (Id.) Ray then directed Plaintiff to leave the visiting room and finally removed him from the visiting room. (Id. ¶ 21.) At the same time, Aletha used a pay phone to first call the state police, and then call the Mid-Orange facility itself, in the hopes of speaking with a lieutenant. (Id. ¶ 20.) Plaintiff alleges that after he was removed from the visiting room, Defendants Ray and Non assaulted him. (Id. ¶ 21.) He claims that when he awoke, he was in the Special Housing Unit and that O'Brien was there, "laughing and joking telling plaintiff, `I told you I would get you.'" (Id.) Later that day, Plaintiff became ill and was taken to St. Luke's Hospital where he was hospitalized from January 30 to February 3, 2000. As a result of the visiting room incident, Defendants Marshall ("Marshall"), Hudson ("Hudson"), and Sargent ("Sargent") (collectively the "IM R Defendants") wrote an Inmate Misbehavior Report (the "IMR"), charging plaintiff with disturbing the order of the facility and refusing to obey a direct order. (Id. ¶ 25.)
On February 8, 2000, a "Tier III" Superintendent's hearing was held on the IMR.*fn1 (Id. ¶ 26.) Defendant Perez, a Deputy Superintendent, presided over the disciplinary hearing. (Id.) After hearing from witnesses, Perez found Plaintiff guilty of the charges in the IMR and imposed a penalty of 45 days confinement in Fishkill's Special Housing Unit ("SHU"), and ninety days loss of privileges. (Id. at ¶ 28.)
Defendants move this Court to dismiss Plaintiff's action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. We recently addressed the propriety of a motion to dismiss an inmate's action for lack of subject matter jurisdiction where he failed to exhaust his administrative remedies. See Arnold v. Goetz (S.D.N.Y. 2003) 245 F. Supp.2d 527, 531-34. For the reasons set forth in that opinion, we must deny Defendants' motion to dismiss to the extent that it is brought pursuant to Rule 12(b)(1). See id. at 534 ("[s]ince the PLRA's exhaustion requirement is an affirmative defense and not a jurisdictional prerequisite, dismissing an inmate's action for lack of subject matter jurisdiction where he failed to exhaust his administrative remedies would be inappropriate.")
In addition to their Rule 12(b)(1) challenge, the Defendants also contend that the Plaintiff's action must be dismissed pursuant to Rule 12(b)(6). Rule 12(b)(6) provides for the dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED.R.CIV.P. 12(b)(6). Under that rule, the Court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Educ. (2d Cir. 1997) 131 F.3d 326, 329. Dismissal of a complaint pursuant to Rule 12(b)(6) is proper "`only where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief.'" Scoto v. Almenas (2d Cir. 1998) 143 F.3d 105, 109-110 (quoting Branham v. Meachum (2d Cir. 1996) 77 F.3d 626, 628 (citation omitted)). Furthermore, where, as here, we are considering a motion to dismiss the claims of a litigant proceeding pro se, we must construe that litigant's pleadings liberally, especially when we are dealing with a complaint alleging civil rights violations. Weinstein v. Albright (2d Cir. 2001) 261 F.3d 127, 132. See also Flaherty v. Lang (2d Cir. 1999) 199 F.3d 607, 612.
Defendants argue that Plaintiff's action must be dismissed because he failed to exhaust his administrative remedies prior to commencing this action. Since the PLRA's exhaustion requirement is an affirmative defense, Defendants "bear  the burden of proving plaintiff's failure to comply with the ...